BASTARD, a person born out of legal wedlock. Amongst the Romans, bastards were classified as nothi, children born in concubinage, and spurii, those not so born. Both classes had a right of succession to their mother, and the nothi were entitled to support from their father, but had no rights of inheritance from him. Both, however, had in other respects most of the rights of citizenship. The Germanic law was based upon an entirely different principle. It recognized as legitimate only those whose parents were of the same social rank. All others were re garded as bastards, and took the status of the parent of inferior rank. The aim of all the Germanic codes was to preserve purity of race, not to improve morals, for incestuous unions are not censured. The influence of the Germanic law lasted throughout the early feudal period, and bastards were debarred rights of inheritance. In the 13th century the influence of Roman law tended again to modify this severity. An exception was probably made in the case of those whose fathers were of royal blood, in which case it even seems that no stigma was attached to the accident of their birth, nor did they suffer from the usual disabili ties as to inheritance which attended those of illegitimate birth (Gregory of Tours, v. 25). Among the Franks we find Theodoric I., a natural son of Clovis, sharing the kingdom with the legitimate sons; Zwentibold, natural son of Arnulf, was created king of Lorraine by his father in 8o5; and even William the Conqueror actually assumed the appellation of bastard.
For poor-law purposes, all legitimate children take the settle ment of their father, but a bastard takes the settlement of its mother. The mother of an illegitimate child is entitled to its custody in preference to the father and under the guardian ship of the Infants Act 1925, it is the consent of the mother that is required for the marriage of such a child. Consequently the responsibility of its support falls primarily on her. But the English law has always recognized the principle that to a certain extent the father must share in that responsibility. This, however, was imposed not with the idea of furnishing the woman with a civil remedy, nor to have a penal effect against the man, but solely to prevent the cost of mainte nance of the bastard child from falling upon the parish. Indeed, the legislation upon the subject, which dates back to 1576, was until 1845 an intimate part of the poor law. But by the Bastardy Act of 1845 the mother was given an independent civil remedy against the putative father, dissociating the parish altogether from the proceedings. Subsequently, legislation gave the parish the right of attaching, and in some cases suing for, money due from the putative father for the maintenance of the child. The existing law is set out under AFFILIATION. Originally a bastard was deemed incapable of holy orders, and disqualified by the fact of his birth from holding any dignity in the Church ; but this doctrine is now obsolete, and in all other respects there is no distinction between a bastard and another man.
According to the common law, which is the law of England, a bastard cannot be divested of his state of illegitimacy, unless by the supreme power of an act of parliament. And this has been indirectly done by statutes of which the Colonial Marriages (Deceased Wife's Sister) Act 1906 and the Deceased Wife's Sister's Act 1907 are examples. Again marriages, celebrated in buildings not duly authorized, have been declared valid by act of parliament ; thus any children would be made legitimate by statute. In 1926, however, by the Legitimacy Act of that year, legitimation by subsequent marriage was first recognized in England. The statutory legitimation is, however, limited both as regards persons and property. (See LEGITIMACY AND LEGITI MATION ; and, for statistics, ILLEGITIMACY.) United States.—The general rule in the United States is that legitimacy is presumed upon the establishment of the birth of a child in wedlock, but this presumption may be overcome by proof of the husband's impotency, or his absence during the entire and natural course of pregnancy and birth, or satisfactory proof of the non-existence of sexual intercourse although present. The weight of authority in the United States holds that the non-existence of actual intercourse, and not the opportunity for intercourse, con trols in rebutting the presumption favouring legitimacy. In the United States the severity of the common law rule that the issue of an illegal or void marriage was illegitimate has been abated by statute in certain cases, such as where one having a former wife or husband living remarried in good faith, being in ignorance of the existing impediment to his or her lawful marriage with any one, the statute declaring that the court may decree the issue to be the legitimate issue of the party capable of contracting the marriage.